Published May 16, 2017
CINCINNATI—A Cincinnati appeals court has reinstated a homosexual couple’s lawsuit seeking damages from county clerk Kim Davis who refused to issue the couple a marriage license because of her religion.
Davis spent five days in jail when she refused repeatedly to issue a marriage license to David Ermold and David Moore, days after the U.S. Supreme Court legalized gay marriage across the nation in June 2015.
A lower court judge had dismissed Ermold’s and Moore’s suit in August 2016, declaring the couple’s claim moot since the Kentucky legislature amended marriage licenses to no longer require the county clerk’s signature. The Rowan County couple has since married.
Davis is committed to fighting the case, Mathew Staver, her attorney through the nonprofit Liberty Counsel of Orlando, Fla., told Baptist Press.
“This case will be continually, rigorously defended to stand for not only the law but Kim Davis’ rights,” Staver said. “She didn’t do anything wrong. They’re not entitled to attorneys’ fees or damages.”
The couple is among several who filed lawsuits against Davis in the middle of a national debate over same sex marriage spurred by the 5-4 high court ruling in the historic Obergefell v. Hodges case. But the suits did not comprise a class action.
In reversing the lower court ruling in the Ermold case, a Sixth Circuit three-judge panel said the new Kentucky marriage license law was not sufficient to void the couple’s suit.
“Damage claims may be moot where the damages would be ‘so insubstantial or so clearly foreclosed by prior decisions that the case does not proceed,’” Judge Karen Nelson Moore wrote, quoting the 1978 ruling in Memphis Light, Gas & Water Div. vs. Craft. “We conclude that this exception does not apply to Ermold’s and Moore’s case.
“The record does not support an argument that Appellants’ damages claims are insubstantial or otherwise foreclosed,” Moore wrote in the unanimous decision. “We therefore conclude that the enactment of Senate Bill 216 did not moot Ermold’s and Moore’s case.”
In a concurring opinion, Judge Eugene E. Siler Jr. cited Davis’ potential protection under the Kentucky Religious Freedom Restoration Act (KRFRA), saying the lower district court did not indicate whether it considered the act in throwing out the suit against Davis.
“But the district court has never ruled on the effect of that statute upon the conduct of the county clerk,” Siler wrote. “It should have the first opportunity upon remand to decide whether that or any other provision of the law would protect Davis as a qualified-immunity or absolute-immunity defense under the circumstances.”
Qualified immunity under the KRFRA is among the legal protections Staver continues to cite in Davis’ defense, as well as the fact that the plaintiffs never won a court decision as a prevailing party against Davis.
“Before you can get to damages, you have to jump over qualified immunity, and you have to show that you’re the prevailing party,” Staver said.
In a separate Kentucky case, family court Judge W. Mitchell Nance cited “a matter of conscience” April 27 in announcing that he would no longer hear adoption cases brought by same-sex couples or “homosexual couples.”
“Under no circumstances” would “the best interest of the child be promoted by the adoption by a practicing homosexual,” Nance said in announcing his decision, the Louisville Courier-Journal reported April 28. Judicial ethics require judges to recuse themselves when they hold personal bias or prejudice, the Courier-Journal said. (BP)
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